The family of a three-year-old girl who was allegedly defiled by two boys is locked in a standoff with police officers, who are reluctant to have the suspects prosecuted. The officers are insisting on an out-of-court deal.
The girl’s family has camped at Pangani Police Station in Nairobi for two days, opposing a push by the officers to have them negotiate with the families of the defilement suspects.
Police insist that prosecution of the two suspects will likely fail because they are both 11-years-old.
The police further argue that it would be hard to prove the case as an examination of the victim did not reveal extensive physical harm.
The investigating officers maintain that under Kenyan law, anyone below the age of 12 is incapable of having carnal knowledge.
The girl’s family is, however, adamant that the matter must be determined by a court of law.
Section 14 of the Penal Code provides that a person under the age of eight years is not criminally responsible for any act or omission. It also states that a person under the age of 12 years is not criminally responsible for an act or omission, unless it is proven that at the time of doing the act or making the omission, they had capacity to know they ought not to do the act or make the omission. This means the police would have to prove in court that the two 11-year-old boys were aware of the implications of their alleged actions.
One of the boys, police sources indicated, has had another defilement case reported against him by a different family in the past.
The officers have based their argument on a report drawn by a clinical officer at Medicins Sans Frontieres’s sexual violence recovery centre in Mathare, where the victim was rushed to after the alleged incident. The report states that a physical exam of the victim showed no signs of injuries on her body and outer female genitalia, and that her hymen was intact.
The document, however, indicates there was some reddening on her right vaginal wall, adding that “this patient presents physical signs and emotional reaction compatible with the assault of which survivor claims to have been victim”.
The report further notes: “The use of constraint and threat during the assault, or the period between the date of the assault and the date of the medical conclusion, can explain the absence of signs of physical violence on this patient.”
The report is, however, not conclusive as it does not indicate the results of tests done on a swab that was collected on the girl’s vagina, which could provide leads as to the cause of the reddening of her vaginal wall.
The girl and her mother were staying with a close relative in Mathare when the alleged incident occurred.
The relative, an aunt to the girl, told the Nation that the incident happened at around 6.30pm, a few minutes after she asked the girl to get into the house since it was getting dark.
“I stepped out of the house to go run an errand and asked her to get into the house. By the time I was leaving, she was at the doorstep getting in, only for me to return later and discover that she had left the house and was now locked inside a neighbour’s house in the company of some two boys,” she explained.
The girl’s aunt said that at first the boys refused to open the door, claiming they were watching cartoons, and when they finally did, the girl came running to her, saying that “(name withheld) and “(name withheld) walinifanyia tabia mbaya ” (they have done bad things to me).
“She told me that they removed her clothes and did ‘bad’ things to her and when they finished, they helped her wear her panty,” she recalled.
Concerned, the minor’s aunt called the girl’s mother and they rushed her to hospital before reporting the matter at Pangani police station under OB number 100/11/01/2021.
“We obtained a P3 form on Tuesday and yesterday the officers, on our insistence, asked us to bring the child back to the station to record a statement alongside her mother. We, however, told them she was unwell as the medicines she had been given were causing her to vomit and they allowed us to take her back when she feels better,” the girl’s aunt said.
Criminal lawyer Gerald Magani told the Nation that the officers handling the case should seek guidance on how to proceed with the matter because they are not a court of law to decide whether the case will succeed or not.
“The police need not look for convicting evidence but for evidence that can lead to proper prosecution of the case. The mandate of deciding whether an offence was committed belongs to the court,” the lawyer explained.
“Additionally, if there is corroborating evidence and the victim is able to explain herself, then the matter is triable. Let the court proclaim itself on whether there is a case to answer,” he added.
